(December 1, 2016) Media reports that Michigan and other states have already certified their electoral votes for Donald mistakenly imply that Hillary cannot win the official Electoral College count on January 6, 2017. If she wins recounts in all three of Michigan, Pennsylvania, and Wisconsin the certifications may be reversed, or at least disputed with alternate certificates. If reversed and uncontested she will automatically become President. If contested, however, Joe Biden may determine the winner.
Since it is up to elected officials within the respective states to validate the certificates, it seems logical to conclude there is little chance that conflicting certificates will be submitted. That presumes, however, that the elected officials of a given state share common interests whereas it is not unusual for some of them to be political opponents. A state’s Attorney General, for example, may not be of the same political party as its Governor. One way a dilemma can result is when the Governor “validates” a Hillary certificate and the Attorney General “validates” a Donald certificate. Who wins and who determines the winner?
Unfortunately the Constitutional instructions are vague. When the electoral votes are officially counted the Constitution requires that the President of the Senate—presently Joe Biden—open the certificates in the presence of a joint Congressional session, but it does not stipulate who shall tally the votes or choose between competing certificates. The founders did not anticipate the possibility of contested certificates.
In 1876 four states tendered competing records. Since the President of the Senate was a Republican, the GOP argued that he had the authority to unilaterally settle disputes. Democrats naturally objected. The result was a Congressional resolution forming a fifteen-member Electoral Commission to settle the conflicts on a state-by-state basis.
Republicans got the numerical edge when the Illinois legislature elected one of the “neutral” members to the U.S. Senate thereby prompting the man to disqualify himself from Commission membership. He was replaced by a Republican substitute. As a result, all four contested states went to the GOP in partisan eight-to-seven Commission votes. Rutherford Hayes became President with 185 electoral votes as compared to 184 for Democrat Samuel Tilden.
Logical inconsistencies in the certificate selections for Oregon and Florida underscored the Commission’s partisanship. It rejected a certificate signed by Oregon’s Governor in favor of one backing Hayes signed by the state’s Secretary of State. In contrast, it accepted a Hayes-favorable certificate in Florida endorsed by the outgoing Governor and rejected two other Tilden-favorable certificates, which included one signed by Florida’s Attorney General and another endorsed by the state’s newly elected Governor.
If there are disputed certificates next month and Biden does not choose the winner, the job might fall to the eight-person Supreme Court, which could result in a four-to-four deadlock. That, however, would be another story and, no doubt, a good one. Stay tuned.
Fortunately the Hayes-Tilden election was 140 years ago during a period of political corruption, typified by the scandals of the Grant administration. We can be thankful that our current leaders assure us that such schemes would never see the light of day today.